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finding no prima facie case where oldest employee in an office was terminated, but not replaced
Summary of this case from Delaney v. Bank of Am. Corp.Opinion
01 Civ. 7513 (LMM).
August 26, 2004
MEMORANDUM AND ORDER
Plaintiff Moira Patterson brings this action against her former employer, J.P. Morgan Chase Co., and the J.P. Morgan Chase Co. Severance Pay Policy (collectively "JP Morgan" or "defendants") alleging age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., New York State Human Rights Law (NYSHRL), N.Y. Exec. Law § 296, New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-107(1), promissory estoppel and violation of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001et seq., with respect to her severance pay, and New York common law claims for unpaid commissions and bonus pay. She seeks compensatory damages and attorneys' fees.
Plaintiff's original claims for breach of contract as well as discrimination under ERISA and a claim for punitive damages were dismissed in Patterson v. J.P. Morgan Chase Co., No. 01 Civ. 7513, 2002 WL 207123 (S.D.N.Y. Feb 11, 2002), at *6 (Martin, D.J.).
Defendants have filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure with respect to all of Plaintiff's claims. For the reasons set forth below, Defendants' motion is granted in part and denied in part.
Background
Moira Patterson was first employed at JP Morgan from March of 1975 through March of 1986. (Patterson Aff. ¶ 4.) She began in a secretarial capacity, and assumed a sales position in 1984. Id. She eventually left for HSBC/Marine Midland Bank, where she worked from 1986 until 1997. (Id. ¶ 5.)
Although Patterson worked for Chase originally, both parties refer to her employer during her entire tenure as JP Morgan, and the Court will do the same for the purposes of this motion. (See Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment (Mem.) at 3 n. 3 (listing series of mergers between entities); Patterson Dep. at 25 (referring to all predecessor companies as JP Morgan).)
In late 1996, according to Patterson, she was contacted by a headhunter, and eventually participated in interviews with JP Morgan, who ultimately offered her employment. (Patterson Dep. at 27-29.) Patterson claims, before accepting the job, she was promised that her previous years of service with JP Morgan would be reinstated for the purposes of calculating her employee benefits. (Patterson Aff. ¶¶ 8-9.) According to Patterson, after she rejected the first offer letter because it did not reference this promise, JP Morgan sent her an offer letter that provided for the restoration of her previous service and the portability of her benefits. (Id. ¶ 9.) She no longer has this letter in her possession. (Id.) The position offered was not a promotion, and she claims she accepted the offer only on the condition that her previous years of service would be reinstated for the purposes of employee benefits. (Pl. 56.1 Stmt. ¶ 5.)
In 1997, Patterson rejoined JP Morgan in a sales position; she was forty-five years old at the time. (Patterson Dep. at 54-56.) The goal of her sales group, according to David Skinner, a Vice President at JP Morgan and Patterson's manager beginning in 1998 (Skinner Aff. ¶¶ 1, 3), was to "work with Middle Market bankers to identify clients who had retirement, long-term and short-term asset management needs and to sell pension and asset management services to meet these needs" (id. ¶ 6). As part of her job, Patterson cultivated relationships with these bankers who would then provide her with opportunities to work with their clients. (Id. ¶ 7.)
Skinner formed a similar sales group in Texas in 2000. (Def. 56.1 Stmt. ¶ 44.) According to defendants, the Texas group had similar goals and hired employees of similar age, including one employee who was older than Patterson. (Id. ¶¶ 44-46, 57.)
Effective December 31, 2000, J.P. Morgan Co. and the Chase Manhattan Corporation merged to form J.P. Morgan Chase Co. (Id. ¶ 48.) According to the defendants, this merger led to a shifting of priorities of both the New York and Texas sales groups, entailing an increased focus on asset management products, including equity and long-term fixed income products. (Id. ¶¶ 50-54.) The merger also forced the sales groups to undergo a reduction-in-force, and two workers each were laid off from the New York and Texas sales offices. (Id. ¶¶ 56-57.)
At the time of the merger, the ages of the workers in the New York sales office were: 49, 46, 45, 44, 43, 42, and 38. (Id. ¶ 57.) At forty-nine, Patterson was the oldest person in the New York sales office. Id. The ages of the workers in the Texas sales office were: 50, 47, 44, and 41. Id.
Patterson and Frank Keating, who was forty-two years old, were the two employees chosen for termination from the New York office as part of this reduction-in-force. Id. Patterson received notice of her termination in January of 2001, and was terminated sixty days later. (Pl. 56.1 Stmt. ¶ 85.) In putting forth reasons for choosing Patterson for termination, JP Morgan claims that Patterson had "only average product knowledge" in long-term equity and fixed-income asset management products, a key requirement in the new business model. (Def. 56.1 Stmt. ¶ 65.) Additionally, they argue that certain clients were dissatisfied with her work, and that she was chosen for performance-related weaknesses. (Skinner Aff. ¶¶ 19, 24-26.)
In contrast, Patterson argues that, at forty-nine and as the oldest person in the New York sales office, she was unlawfully terminated because of her age. (First Amended Complaint (Am. Compl.) ¶ 38.)
She also brings a claim with respect to her severance pay. At the time of her termination, JP Morgan maintained a severance plan, covered by ERISA, see Patterson, 2002 WL 207123, at *5, which provided for three weeks of severance pay for each year of service. (Def. 56.1 Stmt. ¶ 15; Severance Pay Policy of The Chase Manhattan Corporation as Amended and Restated Effective August 27, 1995 Amended Through August 31, 2000 (Severance Pay Policy) ¶ 4.1(a), Wikman Aff. Ex. A, at 8.) Within the plan, "Year of Service" is defined as "[a] twelve-month uninterrupted continuous period of active employment . . ., provided that: (i) a period of uninterrupted continuous active employment of an individual shall only include the length of employment with his or her latest Employer at the Date of Termination of Employment. . . ." (Severance Pay Policy ¶ 2.1, at 4.) Patterson received a benefits manual that described further the managements for severance benefits: "Breaks in employment of more than six months are considered interruptions of continuous service resulting in a restart of the measurement of continuous service." (Patterson Dep. at 135, Ex. N, at 11.2 (Patterson deposition with attached exhibits submitted as Guttfleish Aff. Ex. B).) At her termination, the severance she received was calculated based on the amount of time she served with JP Morgan only since her rehire in 1997, and did not include her prior service from 1975 to 1986. (Am. Compl. ¶¶ 33-35.) She disputes this calculation, and claims that her severance should have taken her prior eleven years of service into account. (Am. Compl. ¶ 35.)
Finally, Patterson contends that she is entitled to a commission and a bonus. Regarding the commission, she claims that she was never paid a commission with respect to a deal she worked on involving Fuji Bank. (Pl. 56.1 Stmt. ¶ 39; Patterson Aff. ¶ 14.) Although Patterson agrees that she received payment for deals completed in the fourth quarter of 2000, she states she did not receive any documentation from JP Morgan regarding the Fuji deal or commission, and therefore cannot know the exact date of completion, the amount of payment, or whether it was incorporated into the payment. (Pl. 56.1 Stmt. ¶¶ 41-42.) Finally, Patterson also claims that she is owed a bonus for 2000. (Patterson Aff. ¶ 38.)
Standard of Review
A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In considering a Rule 56 motion, the district court is to view the evidence at all times in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party initially bears the burden of demonstrating the absence of any disputed issue of material fact. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). What facts are deemed "material" is dictated by the law attendant to the plaintiff's claims. Anderson, 477 U.S. at 248. The movant will satisfy his burden "if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
Once such a showing is made, the burden falls upon the nonmoving party to point to evidence showing that a genuine issue of material fact exists such that a reasonable jury could return a verdict in its favor. Anderson, 477 U.S. at 256-57. In so doing, they must raise more than a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, the nonmoving party must rely on more than mere conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
The Second Circuit has urged caution when granting summary judgment in contexts where intent is an issue, since direct evidence of intentional discrimination is available only in the rarest of instances. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Nonetheless, summary judgment is by no means precluded in employment discrimination cases. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Chambers v. TRM Copy Ctrs., 43 F.3d 29, 40 (2d Cir. 1994). "[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation."Meiri, 759 F.2d at 998.
Discussion
I. Age Discrimination Claim
The ADEA prevents discrimination on account of age in employment. The statute states that it is an unlawful employment practice for an employer "to discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). Both the NYSHRL and the NYCHRL include similar provisions. See N.Y. Exec. Law § 296(3-a) (a); N.Y.C. Admin. Code § 8-107(1)(a). The claims under New York state and city laws are analyzed in a similar manner as the claim under federal law. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
"To establish a prima facie case of age discrimination, a plaintiff must show four things: (1) he is a member of the protected class; (2) he is qualified for his position; (3) he has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination." Abdu-Brisson, 239 F.3d at 466. Courts treat a discrimination claim brought under the ADEA under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). Under this framework, once a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. If the defendant is successful, the plaintiff must prove by a preponderance of the evidence that the defendant's proffered reason was pretextual, and the real reason was instead unlawful discrimination. See Gallo, 22 F.3d at 1224-25.
A. Patterson's Prima Facie Case
Patterson claims that her age — and the fact that she was the oldest person in the New York sales office — was the real reason for her termination, and that it was therefore unlawful.
The first three elements of the prima facie case are undisputed. Patterson was in a protected class, as she was over forty when she was terminated. See 29 U.S.C. § 631(a). JP Morgan agrees, for the purposes of this motion, that she was qualified for her position, and neither party disputes that her termination was an adverse employment action. Where the dispute lies is with respect to the fourth element: whether the circumstances surrounding her termination give rise to an inference of age discrimination.
The age requirements under state and city law are more lenient, although the difference is not material in Patterson's case. See N.Y. Exec. L. § 296(3-a) (a) (protecting all employees over age eighteen); N.Y.C. Admin. Code § 8-107 (1) (a) (setting forth no specific age limitation); see also Abdu-Brisson, 239 F.3d at 467 n. 3.
To support her case, Patterson points to other examples of older people terminated, both before she was terminated and at the same time. (Pl. 56.1 Stmt. ¶ 90.) She testified that "she felt the termination of older sales people appeared to be in age order." (Id. ¶ 91).
The terminations at the same time as Patterson's termination do not support that assertion, however. Keating, the employee from the New York office terminated with Patterson, was not the next oldest person in the New York sales office; at forty-two, he was the sixth oldest, and therefore second youngest, out of seven employees. (Def. 56.1 Stmt. ¶ 57.) In the Texas sales group, Brian Molin, age forty-seven, the second oldest employee out of four, and Elizabeth Longworth, age forty-one, the youngest employee, were chosen for termination. (Id.)
Patterson also identifies older employees who were terminated by Skinner prior to the time she was: Bill Barnum and Yoke Bauer, two of approximately twelve employees that Skinner terminated over three years. (Patterson Dep. at 169). In fact, Skinner terminated a number of people during the three years prior to Patterson's termination, many of whom were over forty. (Skinner Dep. at 24-26 (testifying to having terminated "more than twelve" employees).) However, even though she states there were other employees whose terminations gave her the impression that people were terminated in age order (Patterson Dep. at 169), she gives no indication of the circumstances surrounding these terminations, and without more her testimony does not lead to a permissible inference of age discrimination.
Aside from pointing out that she was the oldest person in the office, Patterson does not put forward any other evidence of age discrimination. Without additional evidence, Patterson has not met her prima facie burden of production to sustain her charge against summary judgment.
B. Defendants' Non-Discriminatory Reason for Termination
Even assuming, arguendo, that Patterson has put forth a prima facie case for age discrimination, Defendants have submitted non-discriminatory explanations for their choice to terminate her. See McDonnell Douglas, 411 U.S. at 802. A company has the right to make decisions in its own financial interest without taking into account the age of the employee or employees terminated. See Maresco v. Evans Chemetics, 964 F.2d 106, 113 (2d Cir. 1992) (employers may base their decisions on reasonable factors unrelated to age); Raskin v. Wyatt Co., 125 F.3d 55, 64 (2d. Cir. 1997) (no discrimination where, although younger employee hired over the plaintiff who was ostensibly qualified for the position, older prospective employee had both positive and negative attributes).
In general, defendants argue that the circumstances arising from the merger both necessitated a reduction-in-force and changed the focus of Patterson's sales group. (Def. 56.1 Stmt. ¶¶ 50-56.) Defendants argue that various circumstances, not including age, were taken into account when determining which employees would be terminated. (Mem. at 15.)
First, Defendants contend that the merger necessitated a reduction-in-force. (Def. 56.1 Stmt. ¶ 56.) Simply stating that a reduction-in-force was the reason for an employee's termination, however, does not innoculate a defendant against a claim of discrimination. "Even within the context of a legitimate reduction-in-force, . . . an employer may not discharge an employee `because' of his age." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir.) (finding defendants' reason of reduction-in-force potentially pretextual because person 25 years younger than plaintiff hired to replace plaintiff soon after his discharge) (citing Gallo, 22 F.3d at 1226), cert. denied, 530 U.S. 1261 (2000). Here, however, defendants have pointed to further non-discriminatory reasons for choosing Patterson within the context of the reduction-in-force.
Defendants claim that the merger impacted the goals of the sales group of which Patterson was a member. (Def. 56.1 Stmt. ¶ 50.) The group had previously been selling investment products through the salespersons' relationships with middle market bankers. (Id. ¶ 46.) As a result of the merger, defendants claim, the group was to shift focus to sell to customers directly and no longer rely on the middle market bankers. (Id. ¶ 51.) Additionally, the group was shifting its focus to asset management products. (Id. ¶¶ 52.) The specific change of focus, according to defendants, was to place "less emphasis on the sale of cash products and more emphasis on the sale of long-term equity and fixed income asset management products." (Id. ¶ 54.) Accordingly, the sale of cash products through middle market bankers was to be shifted to an internal telemarketing group. (Id. ¶ 55.) Skinner considered Patterson's knowledge of long-term equity and fixed income asset management products to be "only average" (id. ¶ 65), and noted that the 401k plans, of which Patterson had very good knowledge, would no longer be sold by sales people in the future model (id. ¶¶ 66-67).
Defendants state that all members of the group, including Patterson, were strong performers. (Id. ¶¶ 62-63.) However, they point to performance-related issues that ultimately influenced their decision to terminate her. (Mem. at 15.)
For example, defendants cite reports of some clients and middle market bankers who were dissatisfied with Patterson's work. (Def. 56.1 Stmt. ¶ 68.) One client, Deutsche Advertising, specifically requested that Patterson not be included in their negotiations with defendants. (Id. ¶ 69.) Additionally, there were dissatisfied middle market bankers, including one who refused to allow Plaintiff to meet with clients. (Id. ¶¶ 73-74.) Further, while at a sales meeting, defendants maintain that Patterson was unable to answer "basic" questions that some of the bankers had regarding certain products the group sold. (Id. ¶¶ 75-77.) They also assert that Patterson was timid about participating in mock sales calls during these group meetings. (Id. ¶ 78.) As further evidence, defendants have submitted an interoffice memorandum written by Skinner, discussing the issues of core competencies and evaluating Patterson as being below all but one other member of the New York office. (Skinner Aff. Ex. A, at JPM 00547.)
As for Bill Barnum and Yoke Bauer, the two older employees identified by Patterson who were laid off before her, defendants point out Barnum had requested to be laid off, as he did not want to sell retirement products. (Def. 56.1 Stmt. ¶ 92.) Bauer was terminated only a year after she was brought into the group by Skinner when, according to Skinner, the business model changed and she did not have the skill set to support the new model. (Id. ¶¶ 93-94.)
Defendants' evidence is sufficient to satisfy their burden under McDonnell Douglas to articulate a legitimate, non-discriminatory reason for Patterson's termination.
C. Patterson's Proof of Pretext
Patterson is also unable to satisfy her burden under the third step of the McDonnell Douglas analysis. She is required to put forth evidence that raises a genuine issue of fact as to whether "the proffered reason was pretextual and that, more likely than not, the true reason was the illegal discrimination that the plaintiff alleged." Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997); see also Raskin, 125 F.3d at 64. Patterson brings forth no evidence tending to show that the defendants' proffered reasons for termination were pretextual.
Patterson disputes the claim that the group had shifted focus, and asserts that at the time of her termination the group still had the same sales focus. (Pl. 56.1 Stmt. ¶ 52.) However, defendants do not claim that the focus changed before Patterson's termination, but rather that the decision had already been made at the time of the reduction-in-force. (Def. 56.1 Stmt. ¶ 51.) Defendants' assertion therefore remains undisputed.
With regard to her performance, Patterson acknowledges that she was not involved in Deutsche Advertising's negotiation with JP Morgan, although she claims no knowledge of other customer complaints. (Pl. 56.1 Stmt. ¶ 68-69.) With respect to the sales meeting at which she could supposedly not answer basic questions, however, she claims that she deferred to David Skinner on managerial issues, and the questions that she could not answer were either directed to him or were more appropriately directed to him because of their managerial nature. (Id. ¶ 75.) Patterson also says that the mock sales calls were used to intimidate salespeople. (Id. ¶ 78.) These explanations, however, do not tend to show that defendants' reasons for choosing Patterson for termination were pretextual.
Patterson argues that the fact that Ken Harrington-Howes and Mark Pollack, both of whom are younger than Patterson, were not terminated indicates that defendants' proffered reasons are pretextual. (Memorandum of Law in Opposition to Defendants' Motion for Summary Judgement (Opp.) at 11.) She points to Skinner's deposition, in which he stated that she was a stronger performer than they. (Opp. at 11.) However, with respect to Harrington-Howes, Skinner was referring specifically to cash products, and with respect Pollack, Skinner was speaking of retirement assets — neither of which were to be sold by sales people under the future model. (See Skinner Dep. at 49-50; Skinner Aff. ¶¶ 11, 18.) Likewise, she argues that the credibility of the defendants' evidence regarding the terminations in the New York and Texas sales groups is diminished because several older sales people were terminated and found alternate employment within JP Morgan (Patterson Aff. ¶ 33) and because Skinner had terminated approximately twelve employees over three years (Skinner Dep. at 24). (Opp. at 11.) However, such assertions on their own do not tend to show that JP Morgan's reasons for terminating Patterson were pretextual.
It also weighs against Patterson that she was over forty when hired. When a plaintiff is in the protected age class at both the beginning and the end of employment, there is a presumption against a finding of age discrimination, although it does not compel summary judgment. See Tarshis v. Riese Org., 211 F.3d 30, 38-39 (citing Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) ("[E]mployers who knowingly hire workers within a protected group seldom will be credible targets for charges of pretextual firing.")), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 509 (2002). Patterson began her second term of employment with JP Morgan in 1997, when she was forty-five (Pl. 56.1 Stmt. ¶¶ 1, 5), thus placing her in the protected age class from the date of her hire.
Because Patterson has not provided any evidence that Defendant's actions were motivated by discrimination, and Defendant has provided a legitimate non-discriminatory reason for the adverse employment actions, which Patterson has not shown may be pretextual, Defendant's motion for summary judgment with respect to Patterson's claims under the ADEA, NYSHRL, and NYCHRL is granted.
II. Severance Pay
Patterson also claims she is owed back severance pay. She brings this claim under both a theory of promissory estoppel and as a violation of ERISA. She claims that during her discussions with defendants, before she accepted the offer, she was promised service credit for purposes of employee benefits for her years of service prior to her tenure with HSBC/Marine Midland Bank, which would have entitled her to a greater amount of severance pay than she was actually granted. (See Opp. at 15.) Defendants assert that she was compensated according to the stipulations of the written plan.
A. Promissory Estoppel
The promissory estoppel claim arises from Patterson's assertion that, but for the promise made by defendants and eventually stated in their second offer letter, she would have remained at her job at HSBC. (Patterson Aff. ¶¶ 9-10.) The job at JP Morgan did not represent a promotion for her. (Patterson Dep. at 30.) Patterson argues that, having relied on the promise of credit for previous service, she should now be granted severance pay for her entire time served with Defendants — fifteen years. (Am. Compl. ¶¶ 63-65.)
The Second Circuit recognized a promissory estoppel cause of action in cases involving ERISA in Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993). The elements are as follows: (1) material representation, (2) reliance, and (3) damage. Id. (citing Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 (3d Cir. 1991)); see also Schonholz v. Long Island Jewish Med. Ctr., 87 F.3d 72, 80 (2d Cir.) (including fourth element of injustice if promise not enforced), cert. denied, 519 U.S. 1008 (1996).
Under ERISA, a successful claim of promissory estoppel must also include "extraordinary circumstances." See Schonholz, 87 F.3d at 78 (use of promised severance benefits to persuade Plaintiff to retire were sufficient to constitute extraordinary circumstances and thus created a material issue of fact); see also Lee, 991 F.2d at 1009 (citations omitted).
Patterson alleges that a representative of Defendants indicated that she would receive restoration of her previous service credit for purposes of her benefits. (Patterson Aff. ¶¶ 8-9.) Here, Patterson claims that she left her employment with HSBC to take a position that did not constitute a promotion because of the promise made by defendants' representative, both orally at the beginning of the communication, and later by letter. (Patterson Aff. ¶¶ 9-10.) Defendants point out that she has been unable to bring forward any letter. (Def. 56.1 Stmt. ¶¶ 26-27.) They further point out Patterson's testimony in which she stated she never discussed severance with anyone before accepting the offer to return to JP Morgan. (Mem. at 5; Patterson Dep. at 129.)
Although defendants argue that Pattersons' claim for promissory estoppel must fail because there was an express agreement governing the payment of benefits (Defendants' Reply Memorandum of Law in Further Support of Their Motion for Summary Judgment at 7) — that is, the Severance Pay Policy — Patterson actually argues that the promise was a modification of that plan. The existence of the policy, therefore, does not automatically void any claim of promissory estoppel.
Patterson's assertions, however, are enough to raise a material issue of fact. In the Second Circuit, "a single sentence can suffice to raise a question that requires resolution by a trier of fact." Joyce v. Curtiss-Wright Corp., 171 F.3d 130, 134 (2d Cir. 1999) (referring to written statements in a Group Insurance Agreement, and determining that sentences did not satisfy burden of promising vested benefits). Patterson's testimony — in which she states she did not specifically mention the word "severance" — does mention the inclusion of her prior service: "When I discussed the position with the human resources officer, we discussed my prior service and how it wold affect me coming back to the bank, and that all of that service would be taken into consideration." (Patterson Dep. at 130.) Shortly after, she stated, "We specifically discussed my time of eleven years and how it would affect me if I returned to the bank. . . . He said that it would all be taken into consideration if I were to return. And had that discussion not occurred, if he did not agree to my terms, I would not have come to the bank." (Id. at 131.) She also alleges rejecting one offer letter because it did not mention her prior services, and accepting the offer only when she received a letter that did. (Id. at 134.) A reasonable factfinder could find that Patterson received this promise and relied on it in her decision to change jobs.
Finally, having left one job to take another based on a promise may satisfy the requirement that the claim involves extraordinary circumstances. "The Second Circuit has recognized that `extraordinary circumstances' may exist where a party makes a promise to intentionally induce a particular behavior on the part of the plaintiff before the promise is withdrawn." Patterson, 2002 WL 207123, at *6 (citing Devlin v. Transp. Communications Int'l Union, 173 F.3d 94, 102 (2d Cir. 1999));see also Devlin v. Empire Blue Cross Blue Shield, 274 F.3d 76, 86-87 (2d Cir. 2001) (luring potential employee away from higher-paying job with the promise of benefits may result in finding of extraordinary circumstances), cited in Patterson, 2002 WL 207123, at *6. Summary judgment with respect to Patterson's claim of promissory estoppel is therefore denied.
B. ERISA
Patterson also argues that denying her full benefits was an abuse of the Severance Pay Plan administrator's discretion. (See Opp. at 18.) Under ERISA, courts review administrators' decisions de novo unless the agreement explicitly states otherwise. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). However, "where the written plan documents confer upon a plan administrator the discretionary authority to determine eligibility, [the Court] will not disturb the administrator's ultimate conclusion unless it is `arbitrary and capricious.'" Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995) (citing Firestone Tire Rubber Co., 489 U.S. at 115). A decision is arbitrary and capricious if it was "`without reason, unsupported by substantial evidence or erroneous as a matter of law.'" Id. at 442 (quoting Abnathya v. Hoffman-LaRoche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)).
In this case, the plan clearly confers upon the administrator full discretion: "The Administrator . . . shall have sole responsibility and complete discretion to interpret all terms and provisions of the Policy. . . ." (Severance Pay Policy ¶ 6.1, at 12.)
However, if the plan was modified by the promise made to Patterson, as discussed above, then deviation from such promise could be arbitrary and capricious. Therefore, a genuine issue of material fact exists with regard to the administrator's decision. Accordingly, summary judgment is denied.
III. New York State Law Claims for Commission and Bonus
A. Commission
Plaintiff claims that she is still owed a commission for work done on a deal with Fuji Bank. (Opp. at 22.) At the very least, she claims that she received no documentation indicating the allocation of commissions with regard to this deal. (Patterson Aff. ¶ 15.) Defendants counter that the commission has been paid in full (Mem. at 25); however, they bring forward no evidence to show this. There is a sufficient issue of material fact to preclude summary judgment.
B. Bonus
Patterson claims that she is entitled to a bonus for her final year of service, 2000. (Am. Compl. ¶ 31; Opp. at 21.) Defendants allege that bonuses are discretionary, that Patterson did not receive a bonus each year, and that few employees in Skinner's group received bonuses in early 2001. (Def. 56.1 Stmt. ¶¶ 33-35, 37.)
Defendants cite Patterson's deposition, in which she stated that she did not know how big a bonus she earned. (Mem. at 24 (citing Patterson Dep. at 150).) Patterson stated she did not know how large a bonus she was entitled to, but claimed that Skinner told her that "everyone got a bonus." (Patterson Dep. at 151.)
Such statement by Skinner calls into question the discretionary nature of the bonus, potentially categorizing it more appropriately as earned wages. See Weiner v. Diebold Group. Inc, 568 N.Y.S.2d 959, 961 (App.Div. 1st Dep't 1991) (whether "incentive compensation . . . was a `bonus' payable at the discretion of the employer, and thus subject to forfeiture, or post employment commissions such as those earned by a sales representative as to which the employer has no right to withhold or, `earned wages' also not subject to forfeiture" was an issue of fact).
The facts presented by both parties are such that there is a genuine issue of material fact and summary judgment is precluded.
Conclusion
For the foregoing reasons, Defendant's motion for summary judgment is granted in part and denied in part. Final discovery is to be completed by October 31, 2004.
So Ordered.